KUALA LUMPUR, Jan 18 — The government can make immunisation mandatory, as the provision is readily available under the Prevention and Control of Infectious Diseases Act 1988, lawyers said.

This was after the recently gazetted Emergency (Essential Powers) Ordinance 2021 dictated the direction for treatment, immunisation, isolation, observation, or surveillance. However, Section 6(1), which listed the matter, appears to be wide-ranging and vague on whether immunisation is deemed mandatory.

The gazettement is dated January 14, but takes retrospective effect from January 11, the day Yang di-Pertuan Agong Al-Sultan Abdullah Ri’ayatuddin Al-Mustafa Billah Shah issued his proclamation of Emergency under Article 150 (1) of the Federal Constitution to safeguard the country from the economic threat posed by the Covid-19 pandemic. 

Section 6 (1) of the Ordinance reads: "For so long as the Emergency is in force, the Yang di-Pertuan Agong or any person authorised by the Yang di-Pertuan Agong, may appoint, subject to conditions as may be determined, any person to issue directions for treatment, immunisation, isolation, observation or surveillance under paragraphs 11(3)(a) and (b) of the Prevention and Control of Infectious Diseases Act 1988 [Act 342].”

Lawyer Shanker Sundaram said that Section 6(1), however, must be read together with Section 11 of the Prevention and Control of Infectious Diseases Act 1988.

"Though the Ordinance didn’t explicitly mention the time frame, mandatoriness by the Yang di-Pertuan Agong or by the authorised person of the Yang di-Pertuan Agong to treat immunisation and/or isolate person/persons, but it is prudent to know that the Act did consent to use of any such force, if it’s necessary. With or without assistance, as may be necessary and to employ such methods as may be sufficient to ensure compliance with any direction issued under Subsection (3) of the Act.

"Recently, when India went into lockdown, we noticed that many state police resorted to harsh baton charge (a police tactic of charging a crowd with batons) to punish the violators of the lockdown without arresting them. Now I wouldn’t be surprised if the same tactics are used against these violators who fail to adhere to the orders for treatment or immunisation, isolation, observation, or surveillance,” Shanker told Malay Mail when contacted.

Section 11 (3) of the Prevention and Control of Infectious Diseases Act reads: During the continuance in force of an order made under subsection (1), it shall be lawful for any authoriSed officer to direct any person or class or category of persons living in an infected local area or in any part thereof to subject himself or themselves — (a) to treatment or immunisation; (b) to isolation, observation or surveillance, the period of which being specified according to circumstances; or (c) to any other measures as the authorised officer considers necessary to control the disease.

Section 11 (4) meanwhile reads: It shall be lawful for an authorised officer to use such force, with or without assistance, as may be necessary and to employ such methods as may be sufficient to ensure compliance with any direction issued under Subsection (3).

Anyone who refuses to comply with any direction issued under Section 11(3) is deemed to have committed an offence.

"In section 11(3) it is clearly stated that any authorised officer to direct any person or class or category of persons living in an infected local area or in any part thereof to subject himself or themselves — (a) to treatment or immunisation;

"This can be deciphered as that the authorised person can give directions as per the Emergency Ordinance, read together with Section 11. Also upon all conditions in Prevention and Control of Infectious Diseases Act 1988 being fulfilled, mandatory immunisation can be done. The authorised officer can even use force to ensure compliance of that direction.

"An objection by the subject of the direction, is an offence under the Act, and in the current law, also in breach of the Emergency Ordinance,” lawyer Dinesh Muthal said.

Human rights lawyer Andrew Khoo also agreed with Shanker and Dinesh, pointing to the same provision.

"If immunisation is to be made mandatory, that power is already existing under the Prevention and Control of Infectious Diseases Act 1988, Section 11(3)(a). The Emergency Ordinance only expands who can be appointed to give directions under the 1988 Act,” he said when contacted.

Science, Technology and Innovation Minister Khairy Jamaluddin said Malaysians would not be given the option to select which Covid-19 vaccine they want as it would be 'a big logistical nightmare' for the government. — Picture by Yusof Mat Isa

Science, Technology and Innovation Minister Khairy Jamaluddin had previously stressed that Malaysians must indicate their willingness to be immunised once the vaccines become available in the country.

He also said Malaysians would not be given the option to select which Covid-19 vaccine they want as it would be "a big logistical nightmare” for the government.

He later dismissed allegations that the government bowed to pressure from anti-vaccination conspiracy theorists in making the Covid-19 vaccination voluntary among Malaysians.

Addressing the allegations, Khairy explained that the government wanted to ensure its citizens are comfortable and confident in their willingness to be vaccinated.

"As far as I know, no country has mandated compulsory Covid-19 vaccination by law,” he said during a press conference last week.

"We will build on the vaccine confidence through our communication plan which would then encourage people to willingly get themselves vaccinated after having gone through risk communications.

"I think if you were to mandate it by law, you might not just have reaction from anti-vaxxers but those on the fence right now,” he added, referring to the anti-vaccination mob. 

The first phase of Malaysia’s Covid-19 immunisation campaign is slated to start next month. The aim is to inoculate about a million Malaysians first, mainly frontline workers and high-risk groups like people with non-communicable diseases.